Sullivan v. West Co., Civil Action No. 5705.

• Decision Date: 05 August 1946
• Docket Number: Civil Action No. 5705.
• Citation: 67 F. Supp. 177
• Parties: SULLIVAN v. WEST CO., Inc., et al.
• Court: U.S. District Court — Western District of Pennsylvania

67 F. Supp. 177

SULLIVAN v. WEST CO., Inc., et al.

Civil Action No. 5705.

District Court, E. D. Pennsylvania.

August 5, 1946.

Robert J. Lindsey, Jr., and I. G. Gordon Forster, of Forster & Baldi, all of Philadelphia, Pa., for plaintiff.

David H. Rosenbluth, of Straley, Ronon, Stevens & Young, all of Philadephia, Pa., for West Co.

Ira Jewell Williams, Jr., and Walter Y. Howson, of White & Williams, all of Philadelphia, Pa., for West Abrasives, Inc.

BARD, District Judge.

This action was brought by an honorably discharged veteran of the United States Navy under the provisions of Section 8(e) of the Selective Training and Service Act of 1940,¹ (1) to obtain an order compelling one of the two defendants to restore him to employment, and (2) to obtain compensation for loss of wages due to defendants' failure to re-employ him.

I make the following special

Findings of Fact.

1. Plaintiff, Howard J. Sullivan, is a resident of Philadelphia, Pennsylvania.

2. Defendant, The West Company, Inc., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business at 1117 Shackamaxon Street, Philadelphia.

3. Defendant, West Abrasives, Inc., is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business at 1500 Walnut Street, Philadelphia.

4. On April 14, 1942, plaintiff was employed by The West Company, Inc., as a mill-man in the abrasive division. Plaintiff was paid sixty cents per hour as a learner between April and July 1942, sixty-five cents per hour between July and October 1942, and $1.10 per hour between October 1942 and November 1943.

5. Plaintiff was employed by defendant, The West Company, Inc., in a position other than temporary between April 1942 and November 1943.

6. Plaintiff left the employ of The West Company, Inc., in November 1943 to enter the armed forces of the United States and was inducted into the United States Navy on November 6, 1943.

7. On or about September 1, 1945, The West Company, Inc., sold and transferred the machinery, equipment, list of customers, and good will of its abrasive division to Ira Jewell Williams, Jr., as agent. The operation of the abrasive division was subsequently taken over by West Abrasives, Inc., a subsidiary of General Grinding Wheel Corporation.

8. The transfer and sale of the abrasive division to West Abrasives, Inc., was absolute and final. There is no common ownership or control nor any other connection between the two defendant corporations.

9. Since the date of the transfer, West Abrasives, Inc., has operated the abrasive business formerly owned by The West Company, Inc. The operating employees in the abrasive division of the vendor became the employees of West Abrasives, Inc.

10. Since the date of the transfer, The West Company, Inc., has had no control over the operations of its former abrasive division and has had no supervision over the hiring or discharge of the employees of West Abrasives, Inc.

11. Since the date of the transfer, The West Company, Inc., has not manufactured products of the type formerly produced by its abrasive division. The West Company, Inc., continues to operate the rubber division of its business.

12. On November 4, 1945, plaintiff received an honorable discharge from the United States Navy.

13. On or about November 6, 1945, within the period prescribed by the statute, plaintiff made application for re-employment to The West Company, Inc., and West Abrasives, Inc. Both defendants refused to employ plaintiff as a mill-man.

14. At the time of these applications for employment and at all times thereafter plaintiff was qualified to occupy the position of mill-man.

15. At the time plaintiff applied for re-employment The West Company, Inc., employed 180 shop employees, approximately the same number as it employed in November, 1943. All of these employees were in the rubber division, since the company was not operating an abrasive department.

16. The West Company, Inc., has a job classification of mill-man in the rubber department which is similar to the position occupied by plaintiff as mill-man in the former abrasive division. The rate of pay in this position in ninety-nine cents per hour.

17. All persons employed by The West Company, Inc., as mill-men in the rubber department became employees before plaintiff was hired and all have higher seniority ratings.

18. West Abrasives, Inc., has four abrasives mill-men at the present time. All of these mill-men were originally employed by The West Company, Inc., before plaintiff and have higher seniority ratings.

19. In November 1945, only three of the mill-men were working for West Abrasives, Inc. The fourth mill-man, Robert Naylor, was an employee of The West Company, Inc., who left his job and entered the armed forces in 1942. He was employed by West Abrasives, Inc. in February 1946.

Discussion.

In November 1943 plaintiff left his job with The West Company, Inc., to enter the United States Navy. While he was still in service his employer sold the company's abrasive division, where plaintiff had been employed, to West Abrasives, Inc. Several days after receiving an honorable discharge from the Navy, plaintiff applied for re-employment at The West Company, Inc., under the provisions of Section 8(b) of the Selective Training and Service Act of 1940.² Employment was refused because the company had sold the abrasive division to West Abrasives, Inc., so that there was no position as abrasives mill-man available for plaintiff. Plaintiff immediately applied for employment at West Abrasives, Inc., the purchaser of the abrasive division. That company likewise refused to employ defendant.

Section 8(b) of the Act provides as follows:

"In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate of satisfactory completion of period of training and service, (3) is still qualified to perform the duties of such position, and (3) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year * * *

"(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so; * * *"

Plaintiff maintains that the requirements of the Act have been met in his case, and that one or the other of the two defendants should be required to employ him.

The West Company, Inc., contends that the sale of its abrasive division in which plaintiff was formerly employed is such a change in circumstances as to relieve it of the statutory obligations. In support of this contention it points to the dicta in Kay v. General Cable Corporation, 3 Cir., 144 F.2d 653, 655, wherein the Court states that the proviso for changed circumstances "was intended to provide for cases where necessary reduction of an employer's operating force or discontinuance of some particular department or activity would mean simply creating a useless job in order to reemploy the plaintiff."

I have no doubt that, under ordinary circumstances, the...